Gay marriage: Eight centuries of law obliterated overnight

In countries where gay marriage is legal, the terms 'husband’ and 'wife’ are
disappearing.

Most people thought they knew what marriage meant, namely the union of a man and a woman. In 2004, when the Civil Partnership Act was passed to provide legal protections for homosexual partnerships, Parliament was led to believe by the government of the day that this did not affect the established institution of marriage. But barely eight years later, political fashion has changed.

David Cameron told last year’s Conservative Party conference that he supported marriage and that it didn’t matter whether it was “between a man and a woman, a woman and a woman, or a man and another man”. If this sounds complicated to say, it’s going to be even more complicated to legislate.

Last month Stonewall published a draft gay marriage bill which removes the words “husband and wife” from the Matrimonial Causes Act 1973, replacing them with “parties to a marriage”. When asked to explain, Ben Summerskill, the CEO, said: “In some clauses you have to replace the words husband and wife because you cannot have two husbands or two wives.” I doubt many husbands and wives will be happy to have the legal definition of their marriages re-written in such a way.

The remainder of their simplistic bill grants wide-ranging powers for a minister to amend the rest of the statute book on marriage, presumably to get rid of all the other references to husband and wife. The minister is going to be busy. The word “husband” appears 1,003 times in statute; “wife” appears 888 times; “spouse” occurs 2,740 times. In all, there are 3,000 references to marriage in current law. The oldest is in an Act passed in 1285, in the reign of King Edward I, part of which is still in force.

Given our present economic situation, why does Mr Cameron think that so much parliamentary time and energy should be dedicated to a change in the law which would obliterate vast amounts of our cultural and legal heritage? Surely not to burnish his “modernising” credentials?

Throughout history and across cultures, marriage has been recognised as being between one man and one woman. Over the centuries, when legislatures brought in laws on marriage, they were not inventing it, just recognising its reality.

More recently, though, familiar words such as “husband and wife” and “mother and father” are disappearing from the statute books in the small minority of countries that have begun the experiment in social engineering. And the moves have been controversial. In Spain, the change was introduced by the Socialist government in 2005, with some 160,000 people turning out on the streets in protest. It passed in parliament in a divisive 187 to 147 vote and, the following year, it was announced that Spanish birth certificates would read “Progenitor A” and “Progenitor B” instead of “father” and “mother”. This kind of language is Orwellian. Can we expect the same kind of thing here if marriage is redefined? In Spain itself the issue is far from settled. The current Spanish prime minister, Mariano Rajoy, does not agree with using “marriage” to describe same-sex unions, and his Popular Party has challenged the 2005 law.

In Canada, since same-sex marriage was brought in, the courts have ruled that a child can legally have three parents, and in the province of British Columbia serious attempts have been made to legalise polygamy. After all, if you can abolish the most important pre-condition of marriage – namely that it requires a person of each sex – why should you be able to retain other pre-conditions, such as limiting it to only two people?

In the Netherlands, where same-sex marriage was introduced in 2001, “cohabitation agreements” have been used to give three-way relationships a measure of legal recognition. It is even being advocated as the next step over here. One Guardian writer, Martin Robbins, recently responded to these concerns by arguing “What’s wrong with polygamy?” He went on: “It seems to me that a child brought up by three loving parents would have some quite big economic advantages…”

The Government must be careful when it starts its promised consultation this week. It would be entirely wrong to pre-emptively ask how the change is to be made without first asking whether it should be made. The change has rightly been described as “a profoundly radical step” and to pursue it without any manifesto commitment is remarkable.

Regardless of the consultation paper, the British public will want to examine the principles at stake. The exchange of views and argument should be frank yet reasoned and reasonable, for secular bigotry today is as unacceptable as religious zealotry was in the past. We must recognise that marriage has established historical, sociological and religious foundations. Such statutes as affect it are designed primarily to regulate its legal consequences. Such a heritage cannot sensibly be equated to the denial of equality or to the practice of discrimination. Marriage is surely not the mere provision of goods and services by its participants, or churches or ceremonies that solemnise it.

Marriage of a man and a woman has sacramental meaning for many religious believers. Such marriage is an institution in our society. It is not to be redefined and re-engineered to meet some contemporary sentiment.

Lord Brennan QC has been a Queen’s Counsel since 1985 and is a former chairman of the Bar Council